Confusing situation

[lostsoul23]

Okay, fellow forum members. I need to 'pick your brains.'
I filed CH 7, no asset, under the old laws. 341 was last month. (12/05) I filed while residing in Ohio, and now live in East TN. I have an Ohio PERS (public employee retirement system) account still sitting in Ohio which can be cashed out in 2/06. If I were to do that, I would pocket about $5,500 after penalities. The trustee mentioned the account, and doesn't want it, at the 341. I've asked my attorney's office, and have been told both "yes" and "no," on whether or not it would be seized if I cashed it out next month. Getting ahold of my attorney directly is like pulling teeth, to say the least, because I want some type of 100% answer, you know?

Does anyone know of any case law, or anything...that I can reference to get my answer? I need the $ to get another car, so rolling it over isn't really an option.

Much thanks, all.

[bkfiler]

sounds tricky. im guessing you cant wait until after your discharge to at least avoid any issues under bk at least?

[JimH]

hmmm... Probably should wait until after discharge. I think the law is pretty clear in that the trustee can't touch the money as long as it's in the retirement fund. Once it's cash he is rightfully entitled to distribute it to creditors if your case is still open.

[lostsoul23]

sounds tricky. im guessing you cant wait until after your discharge to at least avoid any issues under bk at least?

Well, the 'date for objections' is 2/21. Should I assume the discharge will come shortly thereafter, like by the end of Feb or later?

[lostsoul23]

hmmm... Probably should wait until after discharge. I think the law is pretty clear in that the trustee can't touch the money as long as it's in the retirement fund. Once it's cash he is rightfully entitled to distribute it to creditors if your case is still open.

The catch is that on 2/28, OPERS will close it out and either send me a check or roll it over to a qualified account, which I'm guessing is like an IRA or something.

[Genenco]

The catch is that on 2/28, OPERS will close it out and either send me a check or roll it over to a qualified account, which I'm guessing is like an IRA or something.

Unless you REALLY REALLY need it, I'd suggest just leaving it alone for now.

If you saw my post of finding I have a "Retirement" account from my employer and never knew about it, I'm planning on doing just that...

[JimH]

The catch is that on 2/28, OPERS will close it out and either send me a check or roll it over to a qualified account, which I'm guessing is like an IRA or something.

Rolling it over into a qualified acct. is your only sure way of protecting it from the trustee. You can still cash out the new acct. anytime you want. It's better to keep it protected until discharge.

Also, it's your responsibility to coordinate with the plan administrator to have the rollover into an acct you have established. If you don't follow through with setting up a rollover acct, they will just send you a check, which you could ultimately lose to the trustee.

Remember, your trustee would really like to have this money, since he gets to keep some of it - no auction or anything. He likes to make a little money too - maybe he has a BMW payment to make or something.